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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
IN RE: WEBLOYALTY.COM, INC. MARKETING AND SALES PRACTICES LITIGATION
MDL 07-01820 Lead Case: 06-11620-JLT
SECOND CONSOLIDATED AMENDED COMPLAINT
Case 1:07-md-01820-JLT Document 80 Filed 11/09/2007 Page 1 of 47In Re: Webloyalty.com, Inc., Marketing and Sales Practices Litigation Doc. 80
Dockets.Justia.com
Plaintiffs, individually and on behalf of all others similarly situated, allege for their
consolidated amended complaint, by and through their attorneys, upon information and belief, as
follows:
I. NATURE OF CASE
1. Plaintiffs bring this consumer class action on behalf of themselves and a class of
consumers and entities who were charged any fees, or paid interest, as a result of becoming
subscribed to defendant Webloyalty.com, Inc.’s (“Webloyalty”) “Reservation Rewards” membership
program, and any other membership programs maintained by Webloyalty (including, but not limited
to “Shopper Discount,” “Shopper Discount and Rewards,” “Travel Values Plus,” and “Wallet
Shield”), along with all those whose personal credit or bank debit card information was improperly
used to create such subscriptions.
2. Through partnerships it creates with online retailers (commonly referred to by
Webloyalty as “e-tailers” or “retail partners”), Webloyalty uniformly sells memberships – by
unilaterally “subscribing” consumers without their knowledge or consent – in sham programs such
as “Reservation Rewards” for which it charges members a monthly fee, typically between $7.00 and
$10.00 per month. Reservation Rewards is the subscription-based program Webloyalty induced
plaintiffs to join, but, upon information and belief, Webloyalty also uses the same uniform tactics
described in this complaint to induce unwitting consumers to join other membership programs such
as Travel Values Plus, Shopper Discounts & Rewards, Buyer Assurance and Wallet Shield. These
programs, including Reservation Rewards and others unknown to plaintiffs, will be collectively
referenced as the “Membership Programs.”
3. The Membership Programs each purportedly provide benefits such as discounts on
dining and tourist attractions, along with “travel protection” such as roadside assistance, hotel
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overbooking and baggage insurance, but, upon information and belief, such Membership Programs
provide virtually no benefit at all, either because the purported “benefits” do not exist or because the
unwitting “subscribers” never attempt to access them. The uniform business practice by which
Webloyalty and its partners sell the Membership Programs constitutes theft, pure and simple.
Worse, this process compromises the confidential billing information (including credit and debit card
information) of unsuspecting consumers who are tricked into clicking on a Membership Program
advertisement.
4. The uniform business practice at issue in this case is as simple as it is deceptive and
devious. During the course of an online retail transaction with a Webloyalty retail partner, an
advertisement appears on the consumer’s computer screen, offering a monetary next purchase
discount or coupon reward. All the consumer needs to do is click on a button and enter his or her e-
mail address twice to redeem it. When he or she does, however, their confidential credit card or
bank debit card information – submitted to carry out the original, legitimate retail transaction – is
secretly obtained and/or intercepted by Webloyalty. Webloyalty then uses this confidential
information to enroll these individuals in one of Webloyalty’s Membership Programs for which
Webloyalty collects monthly charges, usually after the expiration of an alleged 30-day “free trial”
basis, but sometimes immediately. The enrollment is on a “negative option” basis, meaning that the
consumer is continuously billed the monthly charge until he or she discovers it and manages to
convince Webloyalty to cancel. The only reference to the charges on a consumer’s bank or credit
card statement is “WLI*RESERVATIONREWARDS.COM” for the Reservation Rewards, or a
similar entry for the other Membership Programs.
5. Because the amount charged (i.e., between $7.00 and $10.00) is so small, many
months often go by with these Webloyalty charges going unnoticed.
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6. Webloyalty then pays its e-tailer for each “subscriber” that is ensnared by this
deceptive business practice. On information and belief, Webloyalty’s retail partners are paid $2.00
for each consumer who is duped.
7. Webloyalty and its e-tailers are eminently aware of the illegal nature of this business
practice, but do not care and have no intention of changing it to require consumers to re-enter their
credit or debit card numbers before signing up for one of the Membership Programs – a simple
process, but one which Webloyalty knows would substantially decrease its revenues, which are
mostly derived from illegal charges, not usage of discounts offered through the Membership
Programs.
8. One question must be asked by this Court and the Jury . . . . Why don’t Webloyalty
and its Retailer Partners eliminate any claims of illegal business practices and any chance of
liability by simply requiring all consumers to RE-ENTER their credit or debit card information in
order to be enrolled in Webloyalty’s Membership Programs? One answer is inevitable . . . .
Because their “business” is based on deception, if they eliminate the deception, their “business”
will evaporate.
9. Indeed, upon information and belief, and based on accounts of various confidential
witnesses, approximately 99% of people who call Webloyalty call to cancel their membership
claiming that they did not know they were enrolled, and were not aware that they were going to be
charged for any Membership Program when they clicked on an advertisement offering money off
their next purchase.
10. Because consumer complaints to Webloyalty and its e-tailers (and to various
governmental and consumer protection agencies about Webloyalty and the Retailer Partners) are so
high, Webloyalty uses prepared scripts to respond to such complaints, and Webloyalty management
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monitors customer service telephone calls in order to ensure that the scripts are followed verbatim.
Webloyalty management even attends weekly meetings at the company’s headquarters to listen to
recordings of calls with consumers canceling their service and demanding refunds.
11. With ready access to consumers’ confidential billing information, Webloyalty’s
online retail partners, like the other defendants herein, exploit this confidential information to
generate additional revenue for themselves by obtaining a kickback fee from Webloyalty for
Membership Program accounts generated through advertising that the retail partners facilitate
through their retail websites.
II. JURISDICTION AND VENUE
12. The Court has original jurisdiction over this class action pursuant to 28 U.S.C.
§1332(d)(2). This action asserts claims for violations of the Electronic Funds Transfer Act
(“EFTA”), 15 U.S.C. §1693e; violations of the Electronic Communications Privacy Act (“ECPA”),
18 U.S.C. §2510; for unjust enrichment; for money had and received; for civil theft; for violations of
California’s Consumers Legal Remedies Act, Cal. Civil Code § 1750; and for violations of
California’s Unfair Competition Law, Business and Professions Code § 17200. This Court has
jurisdiction over this action pursuant to 28 U.S.C. §1331 (federal question), 15 U.S.C. §1693m(g)
(EFTA) and 18 U.S.C. §§2510, et seq. (ECPA). This Court has supplemental jurisdiction over the
state law claims pursuant to 28 U.S.C. § 1367.
13. Venue is proper in the District of Massachusetts under 28 U.S.C. §1391(b) pursuant
to the February 15, 2007 Order of the Judicial Panel on Multidistrict Litigation transferring the
following actions to the District of Massachusetts for coordinated and consolidated pretrial
proceedings: Kuefler, et al. v. Webloyalty.com, Inc. & Fandango, Inc. d/b/a Fandango.com, Case
No. 06 CA 11620 JLT; Crouse, et al. v. Webloyalty.com, Inc. & Priceline.com, Inc. d/b/a
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Priceline.com, Case No. 06 CA 11834 JLT; Staaf, et al. v. Webloyalty.com, Inc., Nelson Shane
Garrett, Individually and d/b/a Justflowers.com and Giftbasketsasap.com; & Maxim O. Khokhlov,
Individually and d/b/a Justflowers.com and Giftbasketsasap.com, Case No. 06 CA 11835 JLT; and
Melo, et al. v. Webloyalty.com, Inc., E-Babylon Inc. d/b/a 123Inkjets.com & ValueClick, Inc., Case
No. CV 06 6329 DSF (JCx).
14. The members of the putative Class have suffered aggregate damages exceeding
$5,000,000, exclusive of interest and costs.
III. PARTIES
15. Plaintiff Joe Kuefler (“Kuefler”) is an individual who resides in Stow, Massachusetts
and is a citizen of Massachusetts.
16. Plaintiff Monica Staaf (“Staaf”) is an individual who resides in Foxboro,
Massachusetts and is a citizen of Massachusetts.
17. Plaintiff Kim Crouse (“Crouse”) is an individual who resides in Dallas, Texas and is a
citizen of Texas.
18. Plaintiff Alcides Melo (“Melo”) is an individual who resides in Selden, New York
and is a citizen of New York.
19. Plaintiff Paula DeDomenico (“DeDomenico”) is an individual who resides in
Tonawanda, New York and is a citizen of New York.
20. Defendant Webloyalty.com, Inc. (“Webloyalty”) is a corporation organized and
existing under the laws of Connecticut with its principal executive offices located at 101 Merritt 7,
7th Floor, Norwalk, Connecticut 06851. According to the Connecticut Better Business Bureau,
Webloyalty.com also does business as “travelvalueplus.com”, “reservationrewards.com”
“buyerassurance.com”, “walletshield.com” and “memberspecials.com.” Webloyalty purports to be
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in the business of providing marketing programs to e-commerce web sites, online communities and
Internet service providers. In reality, however, Webloyalty is in the business of collecting fees from
consumers and not providing promised discount coupons. As a result of Webloyalty’s “business”
practice of charging consumers $7 to $10 for nothing, Webloyalty was able to generate revenues of
$108.6 million for Fiscal Year 2005, and achieved a compound annual growth rate of over 90% for
the past three years.
21. Defendant Fandango, Inc. d/b/a Fandango.com (“Fandango”) is a California
corporation with a principal place of business at 12200 West Olympic Blvd, Suite 150, Los Angeles,
California. Fandango is a citizen of California. Fandango has significant minimum contacts with
the Judicial District of Massachusetts and all fifty states in the United States. Fandango is an
internet movie ticketing service that sells movie tickets to theaters and cinemas across the nation.
22. Defendant Priceline.com, Inc. d/b/a Priceline.com (“Priceline”) is a Delaware
corporation with a principal place of business at 800 Norwalk Avenue, Norwalk, Connecticut.
Priceline has significant systematic and continuous contacts with the District of Massachusetts and
all 50 states in the United States. Priceline is an Internet-based travel service that offers leisure
airline tickets, hotel rooms, rental cars, vacation packages, and cruises. Priceline also offers a
personal finance service that markets home mortgages, refinancing, and home equity loans.
23. Defendant Nelson Shane Garrett (“Garrett”) is an individual who, upon information
and belief, resides in Los Angeles, California and is a resident of California. Garrett does business
as, among other entities, JustFlowers.com and Giftbasketsasap.com. These interrelated web sites,
which are based in Los Angeles, California, sell flowers, bouquets, stuffed animals, chocolates,
cookies, wine and gift baskets for shipping to customers around the United States.
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24. Defendant Maxim O. Khokhlov (“Khokhlov”) is an individual who, upon information
and belief, resides in Los Angeles, California and is a resident of California. Khokhlov is “Domain
Administrator” for JustFlowers.com and does business as, among other entities, JustFlowers.com
and Giftbasketsasap.com. These interrelated web sites, which are based in Los Angeles, California,
sell flowers, bouquets, stuffed animals, chocolates, cookies, wine and gift baskets for shipping to
customers around the United States.
25. Defendant ValueClick, Inc. (“ValueClick”) is a corporation organized and existing
under the laws of Delaware with its principal executive offices located at 30699 Russell Ranch
Road, Suite 250, Westlake Village, California 91362. ValueClick states that it is “one of the world's
largest integrated online marketing companies,” offering services to “advertisers to cost-effectively
acquire customers . . . .” According to its SEC Form 10-Q for the period ending September 30,
2006, the Media segment of ValueClick, which includes defendant E-Babylon, Inc. “provides a
comprehensive suite of online marketing services and tailored programs that help marketers increase
awareness of their products and brands, attract visitors and generate leads and sales through the
Internet.”
26. Defendant E-Babylon, Inc. d/b/a 123Inkjets.com (“E-Babylon”) is a corporation
organized and existing under the laws of California, with its principal executive offices located at
30699 Russell Ranch Road, Suite 250, Westlake Village, California 91362. E-Babylon is owned by
defendant ValueClick. In its SEC Form 10-Q, ValueClick states that “E-Babylon expanded
[ValueClick’s] e-commerce channel and provided an infrastructure with the capability to support all
of [ValueClick’s] current e-commerce initiatives.” It further states that the results of E-Babylon’s
operations are included in [ValueClick’s] consolidated financial statements . . . .” 123inkjets.com,
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an internet retailer, is owned by defendant E-Babylon, with its principal executive offices located at
25 East Easy Street, Simi Valley, California, 93065.
27. Defendant Kraft Foods Inc. (“Kraft”) is a Virginia corporation with a principal place
of business at Three Lakes Drive, Northfield, IL 60093. Kraft, through its subsidiaries, is engaged in
the manufacture and sale of packaged foods and beverages in the United States, Canada, Europe,
Latin America, Asia Pacific, the Middle East and Africa.
28. Defendant Victor Th. Engwall & Co., Inc. (“Victor”) is a Delaware corporation with a
principal place of business in Northfield, IL. Victor has significant minimum contacts with the
Judicial District of Massachusetts and all fifty states in the United States. Victor, a subsidiary of
Kraft, and upon information and belief, owns the domain Gevalia.com. Through that domain, Victor
is engaged in the manufacture and sale of coffees, teas, and gifts offered via direct automatic
delivery or catalog order in the United States, Canada, Europe, Latin America, Asia Pacific, the
Middle East and Africa.
29. Unless otherwise stated, defendants Webloyalty, Fandango, Priceline, Garrett,
Khokhlov, E-Babylon, ValueClick, Kraft and Victor are collectively referenced as “Defendants.”
30. Unless otherwise stated, defendants Fandango, Priceline, Garrett, Khokhlov, E-
Babylon, ValueClick, Kraft and Victor are collectively referenced as the “Retailer Defendants.”
31. At all times herein mentioned, each Retailer Defendant on the one hand, and
Webloyalty on the other hand, were the agents, principals, employees, servants, partners, joint
venturers, and representatives of each other. In doing the acts hereinafter alleged, they each were
acting within the scope and course of their authority as such agents, principals, employees, servants,
partners, joint venturers, and representatives, and were acting with the permission and consent of the
other Defendant.
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32. Plaintiff alleges on information and belief each Retailer Defendant on the one hand,
and Webloyalty on the other hand, had knowledge of and agreed to the unlawful conduct alleged
herein. Each Retailer Defendant on the one hand, and Webloyalty on the other hand, conspired with
each other to engage in the common course of unlawful conduct alleged herein, for the purpose of
enriching themselves at the expense of plaintiffs and the Class, resulting in damages to plaintiffs and
all others similarly situated.
IV. FACTUAL ALLEGATIONS
A. Defendants’ Practice of Creating and Charging for “Reservation Rewards” and Other Unauthorized Membership Programs
33. Webloyalty and its online retail partners, like the Retailer Defendants, create
unauthorized membership accounts through a uniform scheme pursuant to which the Retailer
Defendants permit Webloyalty to place advertisements on their internet websites which purport to
offer next purchase coupons or discounts (usually in $10 denominations). These unsolicited
advertisements appear on-screen immediately after a consumer attempts to complete a legitimate
online transaction such as purchasing movie tickets (fandango.com), making hotel or plane
reservations (priceline.com), purchasing flowers or gift baskets (justflowers.com), or ordering printer
cartridges (123inkjets.com), and either before or immediately after a consumer reaches a final
confirmation screen for their order. Webloyalty and its online retail partners constructed and
employed advertisements in a manner which automatically obtains or intercepts credit or debit card
information and enrolls the consumer in the Membership Programs without the consumer’s
permission, knowledge, or legal consent.
34. Defendants’ marketing activities are designed to, and do, exploit consumers’ well
ingrained online shopping habits and widely shared assumptions about the usual steps involved in
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online shopping transactions. In short, Defendants exploit consumer behaviors for their own
nefarious ends.
35. Defendants’ marketing activities are designed to, and do, take advantage of the innate
limitations of consumers’ cognitive ability that narrow their attention to goal-relevant information.
36. Specifically, in light of well-established psychological research on consumer
judgment and decision-making, the combined use of specific visual and verbal elements in
Defendants’ marketing communications to Plaintiffs and the Class, and the insertion of these
marketing communications into the flow of Internet web pages for a primary intended transaction
(i.e., the legitimate online transaction with one of the Retailer Defendants) add to the Plaintiffs’ and
the Class’ unawareness and subsequent misdirection. This is a uniform practice and procedure that
is applied by Webloyalty and the Retailer Defendants universally to all consumers.
37. Webloyalty’s online retail partners, like the Retailer Defendants, use the confidential
billing information they collect when customers attempt to complete an online retail transaction
(e.g., for movie tickets). Webloyalty, in turn, obtains and/or intercepts and then uses this
confidential billing information, without the consumer’s authorization, knowledge or legal consent to
enroll the consumer in one of its Membership Programs. Webloyalty engages in this practice, with
the knowing assistance of its online retail partners, like the Retailer Defendants, although customers
do not agree, nor have they ever agreed, to pay separate charges of approximately $7 to $10 per
month for the Membership Programs by credit card, by electronic fund transfers from debit cards or
bank accounts.
38. Webloyalty and the Retailer Defendants intentionally and knowingly refuse to require
consumers to re-enter their credit or debit card information as a condition of enrollment, because
requiring the re-entry of credit or debit card information would put consumers on notice of the fact
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that they would be subject to monthly charges, thus preventing Defendants from exploiting
consumers through their deceptive acts.
39. Because of the automatic billing structure employed by Webloyalty (pursuant to
which Webloyalty customers do not receive any bill or invoice notifying them of charges prior to
Webloyalty assessing the charges), customers often do not realize for months or years that they are
being charged for unauthorized Memberships Programs.
40. Defendants profit from this scheme by collecting fees for unauthorized Membership
Programs. Webloyalty reportedly earns approximately $100 million in annual revenue and, on
information and belief, pays each Retailer Defendant $2.00 per duped consumer.
41. Indeed, Webloyalty announced on October 20, 2006 that it earned the Number 12 slot
on Deloitte’s 2006 Technology Fast 500, a ranking of the 500 fastest growing technology, media,
telecommunications and life sciences companies in North America.1 From 2001-2005, Webloyalty
grew a staggering 15,151 percent.2
42. Webloyalty’s online retail partners, including the Retailer Defendants, also profit
from this scheme because they receive kickbacks from Webloyalty for “sales” of Membership
Programs to their customers.
43. In addition to the Retailer Defendants, Webloyalty has partnered with up to 100 other
Internet retailers, such as Hotels.com, FTD.com, Classmates.com, Allposters.com, and Half.com.
44. Defendants, and Webloyalty in particular, have directly received scores of complaints
from consumers who have been charged for unauthorized Membership Programs. More complaints
1 http://www.webloyalty.com/about-customer-loyalty/news-events/press-release/fast500-2006/
2 http://www.webloyalty.com/about-customer-loyalty/news-events/press-release/fast500-2006/
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can be found at hundreds of Internet postings at consumer protection websites and blogs such as
www.ripoffreport.com (which contains over 4,000 complaints), www.investorial.com,
www.complaints.com, www.consumerwebwatch.org, http://adam.rosi-kessel.org/weblog/the_man
/webloyalty_aka_wli_reservations_is_a_scam.html (consumer blog containing over 1,000 consumer
complaints regarding Webloyalty). Webbetrayal.com is a website dedicated solely to confronting
the Webloyalty business model and publicly questioning its deceptive marketing practices. This
website alone references thousands of other complaints by consumers who have been deceived by
Webloyalty and its partnering retailers.
45. The complaints found throughout the Internet evidence the uniform nature and
application of Defendants’ deceptive business practices, as they each contain the same common
theme of consumers who were unwittingly enrolled in the Membership Programs, and then at some
later time discovered charges of between $7 to $10 per month on their credit or debit statement with
no disclosure as to the origin of those charges.
46. The scores of consumer complaints regarding Defendants’ business practices are
further reflected in Webloyalty’s “unsatisfactory” rating by the Connecticut Better Business Bureau
(the “CT BBB”):
Based on Better Business Bureau files, [Webloyalty] has an unsatisfactory record with the Bureau due to a pattern of complaints concerning deceptive marketing/selling practices and unauthorized charges on consumers’ credit cards. Although the company has resolved all complaints brought to its attention by the BBB by canceling consumers’ program memberships and by providing refunds, the firm has failed to correct the underlying reasons for the complaints.
To date, the CT BBB continues to receive the same patterns of complaint activity.
47. According to the CT BBB’s website:
The [CT BBB] processed a total of 884 complaints about this company in the last 36 months, our standard reporting period. Of the total of 884 complaints closed in 36 months, 441 were closed in the last year.
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48. Even Webloyalty’s own customer service representatives have joined the fray and
have posted the messages on Internet bulletin boards or blogs about their own company, including
the following:
WOW!! The level of stupidity on this board is incredible. You people don’t get it, do you?? Webloyalty didn’t sign you up for anything. You signed yourselves up. The details are right there, in plain sight, in normal sized text, right in front of your faces. It details EVERYTHING, including the cost of the service and the billing cycle. The problem is that all of you idiots chose not to read it. You saw “free”, and figured “gee, something free for me? golly, I must be special”. WRONG!! YOU’RE NOT SPECIAL, YOU’RE JUST FUCKING LAZY AND STUPID!! YOU SIGNED YOURSELF UP! NOTHING HAPPENED AUTOMATICALLY!! THERE WAS NO SLIGHT OF HAND OR MISLEADING WORDING!! The bottom line is you’re all a bunch of stupid, lazy, crybabies who don’t want to take any responsibility [sic] for your actions. NONE! Well, that’s [sic] what you get for being stupid and lazy.
LEARN TO TAKE RESPONSABILITY [sic] FOR YOUR OWN ACTIONS. DON’T POINT THE FINGER AT OTHERS AND CALL THEM “THEIVES” [sic] AND “SCAM ARTISTS” AND BLAME THEM FOR YOUR OWN STUPIDITY. YOU ALL MAKE ME SICK!! FUCKING CRYBABIES!!!!
49. Another current Webloyalty customer service representative posted this on the
Internet:
I’m a rep in the call center at Webloyalty. I have no pity for any of you people. You’re all suckers, plain and simple. Didn’t anybody ever teach you that nothing is free? When all of you idiots made your purchases on whatever website you did business on at the end of your transaction there was an offer asking if you wanted to save $10, or get award miles, or whatever. When you clicked on that link you were not automatically signed up. What happens is that you’re brought to the Reservations Rewards website. On that website it tells you that you are on the website for Reservations Rewards. You see, you can tell that because the banner at the top of the site says “Reservations Rewards”. Unfortunately you were too stupid to notice or remember. It then gives you instructions on how to redeem your “reward”. At that point you are instructed to enter you email address in twice and click accept. Now you have to manually type in the email twice in those boxes. No cut and paste is allowed. Then it tells you to click accept. Now, if you had any fucking brains in your head you would have noticed that right above the box where you enter your email mail address its [sic] says, in regular sized type, in plain sight, right out in the open, that entering your email twice will act as an electronic signature and that by clicking accept you are accepting that the website you just made a purchase on can share the billing information with Reservation Rewards. Also in the big box next [sic] all of this it gives the exact details of what you are signing up for, again in regular sized print, in plain sight, right out in the open. If you are too stupid
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to take the time to notice all of that then you deserve what you got. [sic] which was a membership in a overpriced bullshit ptogram [sic].
Webloyalty depends on idiots like you to not notice this stuff. To be blinded by the idea that you are getting something for “free”. To not look at you [sic] credit card statement so charges go through every month. Its [sic] unbelievable the amount of dummies out there that fall for this stuff. Even if you do catch the charges eventually, and get a refund they still made money off of you by collecting interest on your money when they had possesion [sic] of it. Stay a member or cancel its win-win for webloyalty.
So, anyway I hope all you dummies learned a valuable lesson and wont [sic] fall for this again. I’m sure many of you will, though. You’d be shocked at how many people are repeat members where they canceled the service a while back but fell for the scam again a few months later.
B. The Plaintiffs
50. On December 25, 2006, plaintiff Kuefler went to defendant Fandango’s Internet
website to purchase movie tickets. Using his Visa credit card, Kuefler made two purchases of movie
tickets from Fandango. To proceed through the purchasing process, Kuefler provided Fandango
with personal information including his name, his credit card number and its expiration date.
51. During the online transaction with Fandango, Kuefler was presented with an
advertisement offering $10 off his next Fandango purchase.
52. Kuefler responded to the above advertisement.
53. Unbeknownst to Kuefler, as a result of responding to the advertisement, Webloyalty
unlawfully obtained and/or intercepted his private credit card information to Webloyalty and
immediately enrolled Kuefler into Webloyalty’s “Reservation Rewards” Membership Program.
54. Subsequently, Webloyalty began charging Kuefler’s credit card $10 per month for
“WLI Reservation Rewards.” On information and belief, Fandango received a kickback of $2 for its
role in exploiting Kuefler.
55. Prior to these charges appearing on his credit card statement, Kuefler had never heard
of “WLI Reservation Rewards,” had not agreed to purchase any product called “Reservation
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Rewards” and had not consented to having his personal information including his credit card account
number obtained and/or intercepted by Webloyalty for the purchase of a membership in
“Reservation Rewards.”
56. Neither Fandango nor Webloyalty provided Kuefler with sufficient and adequate
disclosures concerning the fact that, by clicking on an advertisement on Fandango’s website offering
money off his next purchase at Fandango’s website, he would be enrolled in Webloyalty’s negative
option “Reservation Rewards” Membership Program and be charged $10 per month as a “member”
of this program. Thus, Kuefler never gave his legal consent to enrollment and was victimized by
Defendants’ deceptive scheme.
57. December 19, 2005, plaintiff Staaf went to defendants Garrett and Khokhlov’s
JustFlowers.com Internet website to purchase a Christmas gift basket. Using her LL Bean Visa
credit card, Staaf purchased the gift basket from Garrett and Khokhlov. To proceed through the
purchasing process, Staaf provided Garrett and Khokhlov with personal information, including her
name, her credit card number and its expiration date.
58. During the online transaction with Garrett and Khokhlov’s Justflowers.com website,
Staaf was presented with an advertisement offering $10 off her next Justflower.com purchase.
59. Staaf responded to the above advertisement.
60. Unbeknownst to Staaf, as a result of responding to the advertisement, Webloyalty
unlawfully obtained and/or intercepted her private credit card information and immediately enrolled
her into Webloyalty’s “Reservation Rewards” Membership Program.
61. Subsequently, Webloyalty began charging Staaf’s credit card $10 per month for
“WLI Reservation Rewards.” On information and belief, Garrett and Khokhlov received a kickback
of $2 for its role in exploiting Staaf.
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62. Prior to these charges appearing on his credit card statement, Staaf had never heard of
“WLI Reservation Rewards,” had not agreed to purchase any product called “Reservation Rewards”
and had not consented to having her personal information including her credit card account number
obtained and/or intercepted by Webloyalty for the purchase of a membership in “Reservation
Rewards.”
63. Neither Garrett, Khokhlov or Webloyalty provided Staaf with sufficient and adequate
disclosures concerning the fact that, by clicking on an advertisement on the Justflower.com website
offering money off her next purchase at the Justflower.com website, she would be enrolled in
Webloyalty’s negative option “Reservation Rewards” Membership Program and be charged $10 per
month as a “member” of this program. Thus, Staaf never gave her legal consent to enrollment and
was victimized by Defendants’ deceptive scheme.
64. In December 2004, plaintiff Crouse went to defendant Priceline’s Internet website to
purchase a hotel stay. Using his Bank of Montreal MasterCard credit card, Crouse purchased a hotel
stay through Priceline. To proceed through the purchasing process, Crouse provided Priceline with
personal information including his name, his credit card number and its expiration date.
65. During the online transaction with Priceline, Crouse was presented with an
advertisement offering $10 off his next Priceline purchase.
66. Crouse responded to the above advertisement.
67. Unbeknownst to Crouse, as a result of responding to the advertisement, Webloyalty
unlawfully obtained and/or intercepted his private credit card information to Webloyalty and
immediately enrolled him into Webloyalty’s “Reservation Rewards” Membership Program.
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68. Subsequently, Webloyalty began charging Crouse’s credit card $9 per month for
“WLI Reservation Rewards.” On information and belief, Priceline received a kickback of $2 for its
role in exploiting Crouse.
69. Prior to these charges appearing on his credit card statement, Crouse had never heard
of “WLI Reservation Rewards,” had not agreed to purchase any product called “Reservation
Rewards” and had not consented to having his personal information, including his credit card
account number, obtained and/or intercepted by Webloyalty for the purchase of a membership in
“Reservation Rewards.”
70. Neither Priceline nor Webloyalty provided Crouse with sufficient and adequate
disclosures concerning the fact that, by clicking on an advertisement on Priceline’s website offering
money off his next purchase at Priceline’s website, he would be enrolled in Webloyalty’s negative
option “Reservation rewards” Membership Program and be charged $9 per month as a “member” of
this program. Thus, Crouse never gave his legal consent to enrollment and was victimized by
Defendants’ deceptive scheme.
71. In or about October or November 2005, plaintiff Melo went to defendants E-
Babylon’s and ValueClick’s 123Inkjets.com Internet website to make a purchase. Using his bank
debit cards, Melo made a purchase on 123Inkjets.com. To proceed through the purchasing process,
Melo provided E-Babylon and ValueClick with personal information, including his name, his bank
debit card number and its expiration date.
72. During the online transaction with 123Inkjets.com, Melo was presented with an
advertisement offering money off his next 123Inkets.com purchase.
73. Melo responded to the above advertisement.
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74. Unbeknownst to Melo, as a result of responding to the advertisement, Webloyalty
unlawfully obtained and/or intercepted Melo’s private bank debit card information and immediately
enrolled him into Webloyalty’s “Reservation Rewards” Membership Program.
75. Subsequently, Webloyalty began charging Melo’s bank account $9 per month for
“WLI Reservation Rewards.” On information and belief, E-Babylon and/or ValueClick received a
kickback of $2 for their role in exploiting Melo.
76. Prior to these charges appearing on his credit card statement, Melo had never heard of
“WLI Reservation Rewards,” had not agreed to purchase any product called “Reservation Rewards”
and had not consented to having his personal information, including his bank debit card and account
number, obtained and/or intercepted by Webloyalty for the purchase of a membership in
“Reservation Rewards.”
77. Neither E-Babylon, ValueClick or Webloyalty provided Melo with sufficient and
adequate disclosures concerning the fact that, by clicking on an advertisement on the 123Inkets.com
website offering money off his next purchase, he would be enrolled in Webloyalty’s negative option
“Reservation Rewards” Membership Program and be charged $9 per month as a “member” of this
program. Thus, Melo never gave his legal consent to enrollment and was victimized by Defendants’
deceptive scheme.
78. On or about November of 2006, DeDomenico went to Victor’s Internet website at
www.gevalia.com to purchase coffee. Using her Visa credit card, DeDomenico made a purchase
from the website. To proceed through the purchasing process, DeDomenico provided Victor with
personal information including her name, her credit card number and its expiration date.
79. During the online transaction with Victor, Plaintiff was presented with a pop-up
advertisement offering $10 off her next purchase at www.gevalia.com.
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80. DeDomenico responded to the above advertisement.
81. Unbeknownst to DeDomenico, without her knowledge and consent, as a result of
responding to the advertisement, Webloyalty unlawfully obtained and/or intercepted her private
credit card information and immediately enrolled DeDomenico into Webloyalty’s Reservation
Rewards Membership Program.
82. Subsequently, Webloyalty began charging DeDomenico’s credit card $10 per month
for “WLI Reservation Rewards.” On information and belief, Victor and Kraft received a kickback of
$2 for their role in exploiting DeDomenico.
83. Prior to these charges appearing on her credit card statement, DeDomenico had never
heard of “WLI Reservation Rewards,” had not agreed to purchase any product called “Reservation
Rewards” and had not consented to having her personal information including her credit card
account number obtained and/or intercepted by Webloyalty for the purchase of a membership in
“Reservation Rewards.”
84. Neither Victor, Kraft nor Webloyalty provided DeDomenico with sufficient and
adequate disclosures concerning the fact that, by clicking on a pop-up advertisement on the
www.gevalia.com website offering money off her next purchase at Victor’s website, she would be
enrolled in Webloyalty’s negative option Reservation Rewards Membership Program and be charged
$10 per month as a “member” of this program. Thus, DeDomenico never gave her legal consent to
enrollment and was victimized by Defendants’ deceptive scheme.
C. Plaintiffs’ Confidential Witnesses
85. Plaintiffs’ allegations herein are based upon, in part, interviews with former
Webloyalty employees. Throughout the course of the investigation into Defendants’ unlawful
business practices, former employees provided information to Plaintiffs’ counsel regarding both the
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illegal Membership Programs and the policies of Webloyalty concerning responding to complaints.
Indeed, Webloyalty armed its Customer Service Representatives with prepared scripts to deal with
inevitable complaints.
86. Among those interviewed in the course of the investigation of the wrongful business
practices complained of herein were numerous former Customer Service Representatives, a
Customer Service Representative “Lead,” a Supervisor of Webloyalty’s Customer Service
Department and a Quality Assurance Analyst at Webloyalty, each of whom were employed by
Webloyalty during the class period.
87. A former Webloyalty Customer Service Representative “Group Lead,” employed by
Webloyalty from July 2000 until December 2003 at its Norwalk, Connecticut headquarters and then
its Shelton, Connecticut headquarters, described his/her position as Group Lead as being a “primary
point of contact to resolve escalated issues” and also to maintain the “e-mail queue.” During his/her
employment with Webloyalty, “every issue was escalated” insofar as “[t]here were few and far
between customers that were not upset.” This individual further explained that retail websites that
offered Webloyalty memberships, “got a percentage of each member.” As a result, refunds and
cancellations “has to be tracked [by Webloyalty] for purposes” of compensating marketing partners,
such as JustFlowers. In addition, this former employee explained that complaints received about
Webloyalty from the BBB were so rampant that the company had to designate people to handle the
BBB complaints. Moreover, according to this former employee, Customer Service Representatives
often got in trouble for not using company-designated scripts for handling customer complaints.
This former employee was unwilling to use the scripts because he/she believed that Webloyalty “was
trying to pull the wool over the customers’ eyes.”
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88. Another former employee worked for Webloyalty as a Customer Service
Representative from February 2004 through May 2005. According to this individual, Webloyalty
generated customers who did not know they were signing up to be customers or be billed by
Webloyalty. If people entered their e-mail address into a “pop-up” relating to a rebate or discount
offer after purchasing something from an online retailer, such as plaintiff, that was all that was
needed to sign them up as Webloyalty customers. Consumers would never know that they were
actually transferring their private information to Webloyalty. This former employee further
explained that the benefits of the Webloyalty programs that people were paying for “were not really
benefits.”
89. Among other things, the Webloyalty programs offered people coupons worth less
than what the people were paying in membership costs each month. In addition, this former
employee explained that “[s]ome people were [Webloyalty] members for years and didn’t know
about it.”
90. This former employee noted that because the job of a Customer Service
Representative was principally to take abuse from customers who had unwittingly signed up for
Webloyalty and had been billed monthly without their knowledge (each Customer Service
Representative answered approximately 50-70 calls daily, only 2 of which could be categorized as
positive or neutral), there was tremendously high turnover among the Customer Service
Representatives. This Customer Service Representative confirmed that Webloyalty required
Customer Service Representatives to follow a script verbatim when responding to consumer
complaints. Interestingly, this Customer Service Representative had inadvertently fallen victim to
Webloyalty himself/herself a few years before working there after buying music from
ColumbiaHouse.com. He/she had eventually obtained a refund (after losing more than $200 in
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overdraft/insufficient fund charges), but did not know the company that scammed him/her was
Webloyalty. This former employee also described how, in 2005, Webloyalty shifted to a new, less
customer-friendly script. Previously, the first step in the script for dealing with an unhappy customer
was to offer at least a partial refund. The new script in early 2005 instructed Customer Service
Representatives to initially offer only to cancel the customer’s service and stop billing, rather than
granting any refund. At this stage the script indicated that the customer will still enjoy access to the
site for the remainder of the billing period, even though billing is halted. Only if the customer
complains at this stage and insists on a refund can the Customer Service Representative offer a
refund of one month’s worth of payments. Then the customer has to demand a refund of all the
payments before the Customer Service Representative can grant a full refund. The script for a full
refund says that it is not Webloyalty’s normal procedure to provide a full refund, but in this
customer’s case, Webloyalty will make an exception and grant a full refund. The former employee
confirmed, however, that this script was a lie; the granting of full refunds when demanded was “very
much a normal procedure.” This 2005 script was effectively a “retention script” even though
Webloyalty claimed it was not. The idea was to give the Customer Service Representative two or
three rebuttal opportunities before processing a full refund.
91. Another former employee is also a former Webloyalty Customer Service
Representative who worked in Shelton, Connecticut. As this former employee described it, “99% of
the people calling were calling to cancel their membership” because “[a] lot of the people didn’t
know they were going to be charged.” This former employee stated that the volume of calls into the
customer service department seeking cancellations was “so high” and that he/she probably received
“well over 100 calls a day” from customers seeking to cancel their Webloyalty membership. He/she
used prepared scripts to respond to consumer complaints. In addition, this former employee
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explained that Webloyalty “could not keep track of how many people canceled memberships
because there were just too many.” He/she opined that “if you’re doing thousands of cancellations a
day, people should be getting suspicious.” He/she concluded by stating that he/she “knew a lawsuit
would happen one day” over people unknowingly being charged for Webloyalty memberships.
92. Yet another former Webloyalty Customer Service Representative in Shelton,
Connecticut provided details concerning the company’s business practices. This former employee
specifically resigned from Webloyalty employment because he/she “didn’t like the way the
Company worked – charging people without them knowing.” As a Customer Service
Representative, this former employee received calls from Webloyalty customers, and was given two
different scripts to employ for customer calls – one script for cancellations and one script for refunds
or credits. He/she described the scripts as requiring Webloyalty Customer Service Representatives
to “use some words over and over again.” In fact, according to this former employee (and
confirming what others have described), “if you didn’t read the script right, you got in trouble.”
That is, “[i]f you didn’t get the script right at least 98% of the time, you were in trouble.” As other
former employees have described, this individual believes that 99% of the calls he/she received were
from customers seeking a refund for charges to their credit card.
93. In addition, a former Webloyalty Customer Service Supervisor, who worked for
Webloyalty from August 2000 through February 2005, described the hierarchy in the call center at
Webloyalty as follows:
Directors
Assistant Director
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Supervisor
Lead Customer Service Representative
Customer Service Representative
94. This former employee stated that the call center was typically so busy that Lead
Customer Service Representatives had to take calls from customers and did not have much time to
do anything else except take escalated calls from the representatives they supervised. He/she
confirmed that 99% of calls received were from customers canceling their memberships and
complaining that they had not intentionally signed up for any services from Webloyalty. Some
consumers complained that Webloyalty “was taking food out of their kids’ mouths,” or had “stolen
their money,” and others called up just crying. Customer Service Representatives were trained to
respond to the consumer that “they had approved [the monthly charge] by putting their e-mail
address twice” into a “pop-up” window. Importantly, this former employee described how
Webloyalty’s upper management was well aware of the shenanigans at the company insofar as they
held weekly meetings at headquarters where, among other things, they listened to recordings of calls
from consumers, virtually every one of which was from an angry customer wanting to cancel his or
her service and get a refund.
95. Finally, a former Quality Assurance Analyst for Webloyalty from 2001 to 2004 who
explained that his/her job function was to record and listen to Customer Service Representative
conversations with customers to see how consistent those contacts were with company standards.
This former employee further explained that the Webloyalty call center was a “scripted
environment” and that Quality Analysts such as him/her were in charge of monitoring “script
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consistency.” The Quality Analyst graded the Customer Service Representative based on, among
other things, how well they followed the script. When listening to calls, this witness typically heard
customers ask how they had gotten signed up for a Webloyalty service and then the customers
immediately demanded a refund. This former employee knew that consumers were signed up for a
membership by Webloyalty without knowing it. That is, if a consumer went to the website of a
Webloyalty partner such as Classmates.com, a rebate offer would come up, and that, if the consumer
accepted the rebate offer, they were automatically signed up for Webloyalty membership, and if the
consumer did not cancel their membership within 30 days, they would get monthly charges on their
credit card statements. Interestingly, this former employee described how Customer Service
Representatives at Webloyalty were required to keep their calls within three to four minutes in
length, and that if the call went on for longer than that, a flag would comes up on the Supervisor’s
monitor. The reason given for this practice, according to this former employee, was that the script
only took that long and if the call went longer other calls may not be answered and the Customer
Service Representative would be “off script.” In addition, this former employee confirmed that
Webloyalty management attending weekly meetings in Shelton, Connecticut where Quality
Analysts, including this former employee, played recordings of calls with customers canceling their
service and demanding refunds.
V. CLASS ACTION ALLEGATIONS
96. Plaintiffs bring this action as a class action pursuant to Federal Rule of Civil
Procedure 23(a) and 23(b) on behalf of themselves and all others similarly situated as members of
the following classes (collectively, the “Class”):
(a) All persons and entities who were charged fees or interest by Webloyalty for a “Reservation Rewards” membership, or one of the other Membership Programs maintained by Webloyalty, in an online transaction with any of the Retailer Defendants;
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(b) All persons and entities whose personal credit or bank debit card information was obtained and/or intercepted by Webloyalty through an online transaction with any of the Retailer Defendants; and
(c) All persons and entities who were charged fees or interest by Webloyalty for a “Reservation Rewards” membership, or one of the other Membership Programs maintained by Webloyalty, in an online transaction with one of the Retailer Defendants and whose bank debit cards or bank accounts were charged (the “EFTA Subclass”).
97. Subject to additional information obtained through further investigation and
discovery, the foregoing definition of the Class may be expanded or narrowed by amendment or
amended complaint. Specifically excluded from the proposed Class are Defendants, their officers,
directors, agents, trustees, parents, children, corporations, trusts, representatives, employees,
principals, servants, partners, joint venturers, or entities controlled by Defendants, and their heirs,
successors, assigns, or other persons or entities related to or affiliated with Defendants and/or their
officers and/or directors, or any of them; the Judge assigned to this action, and any member of the
Judge’s immediate family.
98. Numerosity. The members of the Class are so numerous that their individual joinder
is impracticable. Plaintiffs are informed and believe, and on that basis allege, that the proposed
Class contains tens of thousands of members. The precise number of Class members is unknown to
Plaintiffs. The true number of Class members are known by Defendants, however, and thus, may be
notified of the pendency of this action by first class mail, electronic mail, and by published notice.
99. Existence and Predominance of Common Questions of Law and Fact. Common
questions of law and fact exist as to all members of the Class and predominate over any questions
affecting only individual Class members. These common legal and factual questions include, but are
not limited to, the following:
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(a) Whether Defendants developed and implemented a scheme to intentionally
create unauthorized Membership Program accounts and to charge consumers and entities for such
accounts;
(b) Whether Defendants conspired with each other to intentionally create
unauthorized Membership Program accounts and to charge consumers and entities for such accounts;
(c) Whether pursuant to the policies and practices described above, Defendants
made “preauthorized electronic fund transfers” from the debit card accounts of EFTA Subclass
members without first obtaining the EFTA Subclass members’ written authorization;
(d) Whether Defendants violated 15 U.S.C. §1693e with respect to the EFTA
Subclass members;
(e) Whether Defendants violated the ECPA, 18 U.S.C. §2510;
(f) Whether Webloyalty committed civil theft, and whether the Retailer
Defendants aided and abetted such theft;
(g) Whether the conduct of defendants Webloyalty, E-Babylon and ValueClick
constituted unlawful, unfair, or fraudulent business practices in violation of Cal. Bus. & Prof. Code
§§17200, et seq., as alleged herein;
(h) Whether Defendants have been unjustly enriched at the expense of Plaintiffs
and the Class;
(i) Whether Defendants are liable to Plaintiffs and the Class for money had and
received;
(j) Whether Plaintiffs and members of the Class have sustained damages as a
result of Defendants’ conduct, and, if so, what is the appropriate measure of damages;
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(k) Whether Plaintiffs and members of the Class are entitled to declaratory and/or
injunctive relief to enjoin the unlawful conduct alleged herein; and
(l) Whether Plaintiffs and members of the Class are entitled to punitive damages,
and, if so, in what amount.
100. Typicality. Plaintiffs’ claims are typical of the claims of the members of the Class in
that Plaintiffs and each member of the Class were charged without his or her prior expressed request
or consent for a Membership Program account.
101. Adequacy of Representation. Plaintiffs will fairly and adequately protect the
interests of the members of the Class. Plaintiffs have retained counsel highly experienced in
complex consumer class action litigation, and Plaintiffs intend to prosecute this action vigorously.
Plaintiffs have no adverse or antagonistic interests to those of the Class.
102. Superiority. A class action is superior to all other available means for the fair and
efficient adjudication of this controversy. The damages or other financial detriment suffered by
individual Class members is relatively small compared to the burden and expense that would be
entailed by individual litigation of their claims against the Defendants. It would thus be virtually
impossible for the Class, on an individual basis, to obtain effective redress for the wrongs done to
them. Furthermore, even if Class members could afford such individualized litigation, the court
system could not. Individualized litigation would create the danger of inconsistent or contradictory
judgments arising from the same set of facts. Individualized litigation would also increase the delay
and expense to all parties and the court system from the issues raised by this action. By contrast, the
class action device provides the benefits of adjudication of these issues in a single proceeding,
economies of scale, and comprehensive supervision by a single court, and presents no unusual
management difficulties under the circumstances here.
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103. In the alternative, the Class may be also certified because:
(a) the prosecution of separate actions by individual Class members would create
a risk of inconsistent or varying adjudication with respect to individual Class members that would
establish incompatible standards of conduct for the Defendants;
(b) the prosecution of separate actions by individual Class members would create
a risk of adjudications with respect to them that would, as a practical matter, be dispositive of the
interests of other Class members not parties to the adjudications, or substantially impair or impede
their ability to protect their interests; and/or
(c) Defendants have acted or refused to act on grounds generally applicable to the
Class thereby making appropriate final declaratory and/or injunctive relief with respect to the
members of the Class as a whole.
104. The claims asserted herein are applicable to all individuals and entities throughout the
United States who became enrolled in one of Webloyalty’s Membership Programs through an online
transaction with the Retailer Defendants. The claims asserted herein are based on Federal law and
Connecticut’s civil theft statute, which is applicable to Class members throughout the United States
insofar as Webloyalty, aided and abetted by the Retailer Defendants, commits the subject theft
through its offices in Connecticut.
105. Adequate notice can be given to Class members directly using information
maintained in Defendants’ records, or through notice by publication.
106. Damages may be calculated from the sales information maintained in Defendants’
records, so that the cost of administering a recovery for the Class can be minimized. The amount of
damages is known with precision from Defendants’ records.
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107. Defendants stole money from Plaintiffs and the Class through the sale of the
Membership Programs at issue to Plaintiffs and the Class. The stolen funds in the possession of
Defendants can be identified from the sale of such memberships to Plaintiffs and the Class and that
restitution of such monies can be made to Plaintiffs and the Class. Such stolen monies are the
property of the Plaintiffs and the Class. All or a portion of these monies in the possession of
Defendants is money in which Plaintiffs and the Class have an ownership interest. Plaintiffs and the
Class were injured and had their money stolen from them as a result of Defendants’ unlawful
business practices described herein.
VI. SUBSTANTIVE ALLEGATIONS
COUNT I
(Violations of the Electronic Funds Transfer Act, 15 U.S.C. §1693e) (Against Webloyalty Only)
108. Plaintiff Melo hereby realleges and incorporates by reference all paragraphs
previously alleged herein. Plaintiff Melo asserts this claim against Webloyalty on behalf of himself
and the EFTA Subclass.
109. Webloyalty has initiated electronic transfers of funds for unauthorized Webloyalty
Membership Program accounts from the debit card and bank accounts of Plaintiff Melo and the
EFTA Subclass members on a recurring basis, at substantially regular intervals, without first
obtaining written authorization from them or providing them with a copy of any such purported
authorization.
110. Therefore, Webloyalty has violated 15 U.S.C. §1693e.
111. Plaintiff Melo and members of the EFTA Subclass have suffered damages by reason
of Webloyalty’s violations of 15 U.S.C. §1693e. Accordingly, under 15 U.S.C. §1693m, Plaintiff
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Melo, on behalf of the EFTA Subclass, seeks actual damages, statutory damages, costs of suit,
attorneys’ fees and an injunction against further violations.
COUNT II
(Violations of the Electronic Communications Privacy Act) (Against All Defendants)
112. Plaintiffs hereby incorporate by reference each of the preceding allegations as though
fully set forth herein.
113. Plaintiffs assert this claim against each and every Defendant on behalf of themselves
and the Class.
114. The transmission of data by Plaintiffs and the Class between their computers and
Defendants, including but not limited to electronic funds transfer information stored by a financial
institution, constitute “electronic communications” within the meaning of 18 U.S.C. §2510.
115. Defendants have intentionally obtained and/or intercepted, by device or otherwise,
these electronic communications without Plaintiffs’ or Class members’ knowledge, consent or
authorization and while the communications were still en route.
116. Defendants have intentionally disclosed to another person, and have otherwise used,
such electronic communications, with knowledge, or having reason to know, that the electronic
communications were obtained through interception, for an unlawful purpose.
117. Plaintiffs and the Class, pursuant to 18 U.S.C. §2520, are entitled to preliminary,
equitable and declaratory relief, in addition to statutory damages of the greater of $10,000 or $100 a
day for each day of violation, actual and punitive damages, reasonable attorneys’ fees, and
Defendants’ profits obtained from the above-described violations.
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COUNT III
(Civil Theft – Treble Damages) (Against All Defendants)
118. Plaintiffs hereby incorporate by reference each of the preceding allegations as though
fully set forth herein.
119. Plaintiffs assert this claim against each and every Defendant on behalf of themselves
and the Class.
120. This claim is brought pursuant to Connecticut General Statutes §52-564, which
provides that: “Any person who steals any property of another, or knowingly receives and conceals
stolen property, shall pay the owner treble his damages.”
121. Pursuant to Connecticut General Statutes §53a-119(2): “A person obtains property by
false pretenses when, by any false token, pretense, or device, he obtains from another any property,
with intent to defraud him or any other person.”
122. Defendants explicitly or implicitly made false representations and statements of
existing facts by being silent and omitting to disclose to Plaintiffs and the Class the following
material facts, which Defendants made with the intent to deceive Plaintiffs and the Class: (a) that, by
clicking on an advertisement designed by Webloyalty while completing a transaction with one of the
Retailer Defendants, Plaintiffs’ and the Class’ private credit or debit card information would be
disclosed by the Retailer Defendants to Webloyalty; (b) that Webloyalty would automatically charge
Plaintiffs and the Class a monthly fee for Webloyalty’s Membership Programs; (c) that Webloyalty’s
Membership Programs provide no benefit to Plaintiff and the Class; and (d) that the Retailer
Defendants obtain a percentage of the monthly fees charged by Webloyalty to Plaintiffs and the
Class.
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123. In other words, Defendants stole money from Plaintiffs and the Class by false
pretenses when they deceived Plaintiffs and each member of the Class into believing that, by
clicking on an advertisement, they would be receiving a gift voucher or coupon. Instead, when
Plaintiffs and the members of the Class clicked on the advertisement, they were, unwittingly,
enrolled into a Membership Program that charged them up to $10 per month. This slight-of-hand
scheme by Webloyalty and the Retailer Defendants is fraudulent, is the basis for the civil theft claim,
and is the equivalent of each Class member having his/her pocket picked of up to $10 per month.
124. The false statements/omissions of material fact by Defendants were not made
innocently or inadvertently, but were instead made with the intent to obtain money from Plaintiffs
and the Class by false pretenses.
125. Defendants’ silence and omissions as to the material facts outlined above were
material insofar as such silence and omissions caused the Class to, without their knowledge, enable
Defendants to defraud them out of up to $10 per month.
126. Defendants knew that their actions would result in the theft of money from Plaintiffs
and the Class. Indeed, Webloyalty has been aware for years that consumers by the hundreds have
complained to local, state and federal authorities about Webloyalty’s unlawful scheme. The Retailer
Defendants’ knowledge is likewise evident from the fact that the Retailer Defendants receive
kickbacks from Webloyalty in the form of a percentage of the money taken from the Class by
Webloyalty in monthly membership fees.
127. All of the Defendants intended to and did defraud Plaintiffs and the Class, as
evidenced by Defendants’ conduct alleged in this complaint.
128. Plaintiffs and the Class were induced to click on Webloyalty’s advertisement by
Defendants’ fraudulent acts, and were injured thereby.
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129. Defendants obtained money from Plaintiffs and the Class as a direct and proximate
cause of Defendants’ fraud by false pretenses, and Plaintiffs and the Class have not been
compensated for the payment of such money.
COUNT IV
(Unjust Enrichment) (Against All Defendants)
130. Plaintiffs hereby incorporate by reference each of the preceding allegations as though
fully set forth herein.
131. Defendant Webloyalty has accessed and received payments from Plaintiffs’ and the
Class members’ credit and debit card accounts without their legal consent and thus knowingly
received a benefit from Plaintiffs and the Class.
132. The Retailer Defendants have received fees or “kickbacks” from Webloyalty for
permitting Webloyalty to obtain and/or intercept Plaintiffs’ and the Class’ personal and private credit
and debit card information, which Webloyalty uses to charge its illegal Membership Program fees
and, thus, have knowingly received benefits from Plaintiffs and the Class. These fees or
“kickbacks,” upon information and belief, are usually $2 from the total fees charged by Webloyalty
to Plaintiffs and Class members.
133. Defendant Webloyalty has no valid or legal basis to access and charge Plaintiffs’ and
each Class member’s credit and debit cards for fees associated with its Membership Programs.
134. The Retailer Defendants have no valid or legal basis to accept payments from
Webloyalty, which are actually payments from Plaintiffs and the Class for accessing and charging
Plaintiffs’ and the Class members’ credit and debit cards for fees associated with Webloyalty’s
Membership Programs.
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135. Webloyalty has received, and continues to receive, substantial fees by charging
Plaintiffs and Class member credit and debit card accounts and/or using Plaintiffs’ and Class
member personal and credit and debit information to earn money for itself.
136. The Retailer Defendants have received, and continue to receive, substantial fees from
Webloyalty as a result of Webloyalty’s scheme of unilaterally charging Plaintiffs’ and Class
members’ credit and debit card accounts and/or using Plaintiffs’ and Class member personal and
credit and debit information to earn money for itself.
137. Such fees, compensation and/or profits constitute unjust enrichment for Webloyalty
and the Retailer Defendants and must be disgorged.
138. Plaintiffs and members of the Class are entitled to recover from Defendants all
amounts wrongfully collected and improperly retained by Defendants, plus interest thereon.
139. As a direct and proximate result of Defendants’ unjust enrichment, Plaintiffs and
members of the Class have suffered injury and are entitled to reimbursement, restitution and
disgorgement from Defendants of the benefits conferred by Plaintiffs and the Class.
140. Plaintiffs and the Class have no adequate remedy at law.
COUNT V
(Money Had & Received) (Against All Defendants)
141. Plaintiffs hereby incorporate by reference each of the preceding allegations as though
fully set forth herein.
142. As a result of the conduct alleged herein, Defendants improperly received monies
from Plaintiffs and the Class they were not legally entitled to receive.
143. Plaintiffs and members of the Class have a claim for improperly paid fees for the
Membership Programs.
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144. Equity and good conscience require that Defendants ought to pay over such additional
monies, described above, to Plaintiffs and the Class.
145. As a direct and proximate result of Defendants’ inappropriate practices, Plaintiffs and
members of the Class have suffered injury and are entitled to reimbursement, restitution and
disgorgement in the amount necessary to restore them to the position they would have been in if
Defendants had not improperly collected and retained the aforementioned fees.
COUNT VI
(Violation of Consumers Legal Remedies Act, Cal. Civ. Code §1750, et seq.) (Against Defendants Webloyalty, E-Babylon, ValueClick Only)
146. Plaintiff Melo hereby incorporates by reference each of the preceding allegations as
though fully set forth herein.
147. This claim is brought against defendants Webloyalty, E-Babylon, ValueClick solely
by Plaintiff Melo individually and on behalf of all others similarly.
148. This cause of action is brought pursuant to the Consumers Legal Remedies Act
(“CLRA”), Cal. Civ. Code §1750, et seq.
149. Defendants Webloyalty, E-Babylon, ValueClick are each a “person” as defined by
Cal. Civ. Code §1761(c).
150. Plaintiff Melo and the proposed Class members are “consumers” within the meaning
of Cal. Civ. Code §1761(d).
151. Plaintiff Melo’s on-line purchase as well as the enrollment by defendants Webloyalty,
E-Babylon, ValueClick of Plaintiff Melo and the Class members in the Membership Programs
constitute “transactions” within the meaning of Civil Code §§1761(e) and 1770.
152. The conduct of defendants Webloyalty, E-Babylon, ValueClick violated and
continues to violate the CLRA in at least the following respects:
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(a) In violation of Section 1770(a)(1) of the CLRA, defendants Webloyalty, E-
Babylon, ValueClick misrepresented the source, sponsorship, approval or certification of goods or
services;
(b) In violation of Section 1770(a)(2) of the CLRA, defendants Webloyalty, E-
Babylon, ValueClick misrepresented the affiliation, connection, or association with, or certification
by another;
(c) In violation of Section 1770(a)(5) of the CLRA, defendants Webloyalty, E-
Babylon, ValueClick represented that its goods or services sponsorship, approval, characteristics,
uses or benefits which they do not have;
(d) In violation of Section 1770(a)(9) of the CLRA, defendants Webloyalty, E-
Babylon, ValueClick advertised goods or services with the intent not to sell then as advertised;
(e) In violation of Section 1770(a)(13) of the CLRA, defendants Webloyalty, E-
Babylon, ValueClick made false or misleading statements of fact concerning reasons for, existence
of, or amounts or price reductions;
(f) In violation of Section 1770(a)(14) of the CLRA, defendants Webloyalty, E-
Babylon, ValueClick advertised that a transaction confers or involves, rights, remedies, or
obligations which it does not have or involve;
(g) In violation of Section 1770(a)(16) of the CLRA, defendants Webloyalty, E-
Babylon, ValueClick represented that the subject of the transaction has been supplied in accordance
with a previous representation when it has not; and/or
(h) In violation of Section 1770(a)(16) of the CLRA, defendants Webloyalty, E-
Babylon, ValueClick represented that the consumer will receive a rebate, discount, or other
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economic benefit, if the earning of the benefit is contingent on an event to occur subsequent to the
consummation of the transaction.
153. Defendant Webloyalty, E-Babylon, ValueClick each engaged in these unfair or
deceptive acts and practices with the intent that they result, and which did result, in the sale of
Memberships Programs to Plaintiff Melo and the Class.
154. In engaging in unfair or deceptive conduct in violation of the CLRA, defendants
Webloyalty, E-Babylon, ValueClick each actively concealed and intentionally failed to disclose
material facts about the Reservation Rewards program and other Membership Programs.
155. As a result of the acts and practices of defendants Webloyalty, E-Babylon,
ValueClick as alleged in this Complaint, Plaintiff Melo seeks an Order enjoining defendants
Webloyalty, E-Babylon, ValueClick from continuing to engage in unlawful, unfair or fraudulent
business practices, and any other act prohibited by law.
156. Plaintiff Melo has timely provided notice to defendants Webloyalty, E-Babylon,
ValueClick.
157. Defendants Webloyalty, E-Babylon, ValueClick have failed to take corrective action
and, accordingly, are liable for damages to Plaintiff Melo and the Class.
COUNT VII
(Violation of the California Unfair Competition Law, Business & Professions Code §§17200, et seq.)
(Against Defendants Webloyalty, E-Babylon, ValueClick Only)
158. Plaintiff Melo hereby incorporates by reference each of the preceding allegations as
though fully set forth herein.
159. This claim is brought against defendants Webloyalty, E-Babylon, ValueClick solely
by Plaintiff Melo individually and on behalf of the Class.
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160. The acts and practices of defendants Webloyalty, E-Babylon, ValueClick, described
herein, constitute unlawful, unfair or fraudulent business practices in violation of the Unfair
Competition Law, Business & Professions Code §§17200, et seq. (“UCL”).
161. The utility of the sales, marketing and unauthorized billing practices of defendants
Webloyalty, E-Babylon, ValueClick is significantly outweighed by the gravity of the harm they
impose on Plaintiff Melo and the Class. The acts and practices of defendants Webloyalty, E-
Babylon, ValueClick are oppressive, unscrupulous or substantially injurious to consumers.
162. The above-described unfair, unlawful and fraudulent business practices conducted by
defendants Webloyalty, E-Babylon, ValueClick present a threat and likelihood of harm and
deception to members of the Class in that defendants Webloyalty, E-Babylon, ValueClick have
systematically perpetrated and continue to perpetrate the unlawful scheme upon members of the
public by engaging in the conduct described herein.
163. The conduct of defendants Webloyalty, E-Babylon, ValueClick violates the public
policy principles espoused in both federal and state statutes and federal regulations. For example:
(a) The EFTA was designed to ensure basic protections for consumers against
unauthorized electronic funds transfers, 15 U.S.C. §1693e;
(b) The ECPA was enacted to ensure the privacy of electronic communications,
and prohibit access to those communications by third parties without authorization, 15 U.S.C.
§§2510, et seq.;
(c) The Federal Trade Commission Act, Section 5, recognizes the public policy
that companies must not misrepresent the nature of their goods and services, and must take
precautions to protect consumers’ personal information; and
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(d) The underlying purpose of the CLRA is to “protect consumers against unfair
and deceptive business practices[.]” Cal. Civ. Code §1760.
164. These stated policies seeking to protect consumers against unfair practices, including
those pleaded in this Complaint, provide a sufficient predicate for Plaintiff Melo’s claims.
165. Plaintiff Melo and the Class have suffered harm as a proximate result of the wrongful
conduct of defendants Webloyalty, E-Babylon, ValueClick alleged herein, and therefore bring this
claim for relief for restitution and disgorgement. Plaintiff Melo is a person who has suffered injury
in fact and has lost money or property as a result of such unfair competition.
166. Pursuant to California Business and Professions Code sections 17200 and 17203,
Plaintiff Melo, on behalf of himself and the Class, seeks an order of this Court: enjoining defendants
Webloyalty, E-Babylon, ValueClick from the continued Membership Program sales and billing
practices in an unfair, unlawful and illegal manner, and an order enjoining defendants Webloyalty,
E-Babylon, ValueClick from collecting money from the Class from the sale of such memberships,
and enjoining the further disclosure and use of confidential billing information. Plaintiff Melo
further requests an order awarding Plaintiff Melo and the Class restitution and disgorgement of
profits acquired by defendants Webloyalty, E-Babylon, ValueClick by means of such unlawful acts
and practices, so as to deter defendants Webloyalty, E-Babylon, ValueClick and to rectify their
unfair and unlawful practices and to restore any and all monies to Plaintiff Melo and the Class,
which are still retained by defendants Webloyalty, E-Babylon, ValueClick, plus interest and
attorneys’ fees and costs.
VII. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated, prays for
judgment against Defendants as follows:
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A. For an order certifying the Class under Rule 23 of the Federal Rules of Civil
Procedure and appointing Plaintiffs and their counsel of record to represent the Class;
B. For restitution, disgorgement and/or other equitable relief as the Court deems proper;
C. For compensatory damages sustained by Plaintiffs and all others similarly situated as
a result of Defendants’ unlawful acts and conduct;
D. One behalf of the EFTA Subclass, for statutory damages under 15 U.S.C. §1693m;
E. For statutory damages under 18 U.S.C. §2520(b)(2) and (c), including punitive
damages;
F. For a permanent injunction prohibiting Defendants from engaging in the conduct and
practices complained of herein;
G. Pursuant to sections 17203 and 17204 of the California Business and Professions
Code, for a permanent injunction against defendants Webloyalty, E-Babylon and ValueClick
enjoining each of them from performing or proposing to perform any of the aforementioned acts of
unfair and unlawful business practices.
H. For pre-judgment and post-judgment interest;
I. For reasonable attorneys’ fees and costs of suit, including expert witness fees; and
J. For such other and further relief as this Court may deem just and proper.
VIII. JURY DEMAND
To the full extent available, Plaintiffs demand a trial by jury.
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Dated: November 9, 2007 Respectfully submitted, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP DAVID J. GEORGE (Admitted Pro Hac Vice) STUART A. DAVIDSON (Admitted Pro Hac Vice) MARISA N. DEMATO JAMES L. DAVIDSON /s/ David J. George David J. George 120 East Palmetto Park Road, Suite 500 Boca Raton, Florida 33432 Telephone: 561/750-3000 (561) 750-3364 (fax)
Proposed Co-Lead Counsel for Plaintiffs and the Class
PHILLIPS & GARCIA, LLP CARLIN J. PHILLIPS ANDREW J. GARCIA 13 Ventura Drive North Dartmouth, Massachusettes 02747 Telephone: 508/998-0800 508/998-0919 (fax) Proposed Liaison Counsel for Plaintiffs and the Class WEXLER TORISEVA WALLACE LLP MARK J. TAMBLYN 1610 Arden Way, Suite 290 Sacramento, California 95815 Telephone: 916/568-1100 916/568-7890 (fax) WEXLER TORISEVA WALLACE LLP KENNETH A. WEXLER MARK R. MILLER 55 West Monroe Street, Suite 3300 Chicago, Illinois 60603 Telephone: 312/346-2222 312/346-0022 (fax)
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Proposed Co-Lead Counsel for Plaintiffs and the Class LEE & AMTZIS, P.L. ERIC A. LEE GINA GREENWALD 5550 Glades Road, Suite 401 Boca Raton, Florida 33431 Telephone: 561/ 981-9988 561/981-9980 (fax) McCALLUM HOAGLUND COOK & IRBY LLP CHARLES M. MCCALLUM R. BRENT IRBY 905 Montgomery Highway, Suite 201 Vestavia Hills, Alabama 35216 Telephone: 205/824-7768 205/824-7767 (fax) GREEN WELLING LLP ROBERT S. GREEN CHARLES D. MARSHALL 595 Market Street, Suite 2750 San Francisco, California 94105 Telephone: 415/477-6700 415/477-6710 (fax) Counsel for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on November 9, 2007, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this
day on all counsel of record or pro se parties identified on the attached Service List in the manner
specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some
other authorized manner for those counsel or parties who are not authorized to receive electronically
Notices of Electronic Filing.
/s/ David J. George David J. George
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Mailing Information for Case 1:06-cv-01820-JLT
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case.
• Ethan J. Brown ethan.brown@lw.com
• Stuart A. Davidson sdavidson@csgrr.com,e_file_fl@csgrr.com
• Andrew J. Garcia agarcia@phillipsgarcia.com,info@phillipsgarcia.com,dmedeiros@phillipsgarcia.com
• David J. George dgeorge@csgrr.com,e_file_fl@csgrr.com
• Eric A. Lee lee@leeamlaw.com,leeamlawecf@gmail.com,zallen@leeamlaw.com
• Joan S. Mitrou Joan.Mitrou@wilmerhale.com
• Carlin J Phillips cphillips@phillipsgarcia.com,info@phillipsgarcia.com,dmedeiros@phillipsgarcia.com
• John J. Regan john.regan@wilmerhale.com
• Mark J. Tamblyn mjt@wtwlaw.com
• Kenneth A. Wexler kaw@wtwlaw.com,ecf@wtwlaw.com,ehs@wtwlaw.com,amn@wtwlaw.com
• Gabrielle R. Wolohojian gabrielle.wolohojian@wilmerhale.com
Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients. C. Nichole Gifford Rothwell, Figg, Ernst & Manbeck, P.C. 1425 K Street, N.W.. Suite 800 Washington, DC 20005 ngifford@rfem.com
Steven Lieberman Rothwell, Figg, Ernst & Manbeck 1425 K Street, N.W., Suite 800 Washington, DC 20005 slieberman@rfem.com
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Mark R. Miller Wexler, Toriseva, Wallace 55 West Monroe Street, Suite 3300 Chicago, IL 60602 mrm@wtwlaw.com Anne M. Sterba Rothwell, Figg, Ernst & Manbeck 1425 K Street, N.W., Suite 800 Washington, DC 20005 asterba@rfem.com Nathan L. Walker Wilmer, Cutler, Pickering, Hale & Dorr 1117 California Ave. Palo Alto, CA 94304 nathan.walker@wilmerhale.com Gael Mahony, Esq. Holland & Knight 10 St. James Avenue, 11th Floor Boston, MA 02116 gael.mahony@hklaw.com Dan Hampton, Esq. Holland & Knight 10 St. James Avenue, 11th Floor Boston, MA 02116 dan.hampton@hklaw.com
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